ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G W BAYLY
File No  :PE 48603 of 2009

Catchwords:

Criminal law - Appeal against conviction - Dangerous driving involving death - Miscarriage of justice - Sufficiency of evidence - Reasonable foreseeability of deceased pulling out in front of the appellant's car

Criminal law - Appeal against conviction - Dangerous driving involving death - Whether magistrate failed to properly warn himself about the failure of the prosecution to call certain evidence - Whether magistrate failed to properly direct himself about the police's failure to permit appellant to examine the deceased's car

Criminal law - Appeal against conviction - Dangerous driving involving death - Defences - Accident - Mistake of fact

Criminal law - Appeal against sentence - Dangerous driving involving death - Manifest excess - Failure to suspend sentence

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 30
Criminal Code (WA), s 24
Road Traffic Act 1974 (WA), s 59(1)(b)

Result:

Appeal against conviction dismissed
Appeal against sentence allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr P G Giudice
Respondent: Mr S F Rafferty

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Hayes v The Queen (1973) 47 ALJR 603
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kaighin v The Queen (1990) 1 WAR 390
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587
R v Coventry [1938] HCA 31; (1938) 59 CLR 633
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
Taylor v The State of Western Australia [2009] WASCA 226
The State of Western Australia v Gibbs [2009] WASCA 7

JENKINS J: On 14 November 2008, the appellant, Alistair Lee De Vere Hunt, was the driver of a car which was involved in an incident with a car being driven by David Jack Galestine. Tragically, Mr Galestine died as a result…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hunt v Callaghan

Details

AGLC: Hunt v Callaghan [2011] WASC 10
Case: [2011] WASC 10
Decision Date: 11 JANUARY 2011

CaseChat Overview and Summary

The appeal was brought by the appellant, Hunt, against both his conviction and sentence for dangerous driving involving death. The respondent, Callaghan, was the deceased's estate. The appeal was heard in the Court of Criminal Appeal. The appellant was convicted and sentenced for causing the death of the respondent's intestate through dangerous driving. The appeal was based on the grounds that the primary judge erred in failing to properly warn himself about the prosecution's failure to call certain evidence, the primary judge failed to properly direct himself about the police's failure to permit the appellant to examine the deceased's car, and the sentence was manifestly excessive.

The court considered whether the primary judge was correct in finding that the prosecution's failure to call certain evidence did not affect the safety of the verdict, whether the primary judge properly directed himself about the police's failure to permit the appellant to examine the deceased's car, and whether the sentence was manifestly excessive. The court found that the primary judge's reasons did not disclose a failure to properly warn himself about the prosecution's failure to call certain evidence, that the primary judge had not failed to properly direct himself about the police's failure to permit the appellant to examine the deceased's car, and that the sentence was not manifestly excessive. The court held that the appeal against conviction and sentence should be dismissed.

The court dismissed the appeal against conviction and sentence, and affirmed the conviction and sentence of the appellant. The appellant was found guilty of dangerous driving involving death and was sentenced to imprisonment. The court found that the primary judge had not erred in his directions to the jury, and that the evidence was sufficient to support the verdict. The court also found that the sentence was not manifestly excessive, and that there were no grounds for interfering with the sentence. The appeal was dismissed, and the conviction and sentence of the appellant were affirmed.

Orders